In India every religion is governed by its respective personal laws. However, Muslims do not have codified laws and are governed by the two schools of the Muslim personal law i.e. the Hanafi and the Shia. Muslim law recognizes three types of heirs, sharers, residuary and distant Kinders. Sharers are the ones who are entitled to certain share in the deceased’s property and secondly, Residuary, the ones who would take up the share in the property that are left over after the sharers have taken their part. Distant kinders are the one who are neither sharers nor residuary. Under the Muslim law the inheritance depend on the kind of property involved. In cases of Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, if a person dies after creating his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. When a Muslim dies, all his property whether acquired or inherited can be inherited by his legal heirs. Muslim does not create any difference between the rights of men and women. On the death of their ancestor, nothing can prevent both male and female to become the legal heirs of inheritable property. Preferential rights do not exist. However, it is generally found that the share of female heir is half of that of the male heirs. Under Muslim Law, a child in the womb shall be entitled to the amount of share in property if such child is born alive. In case if the child is born dead then the share vested in him shall cease to exist and it shall be presumed that it never existed. Under the Shia law, a Muslim widow who does not have any children shall be entitled to inherit one – fourth share of the property. However, a widow with children is entitled to one – eighth share of the deceased husband’s property. The step children do not have any right to inherit the property of their step – parents. Where a person dies without any heir then, the property of such a person shall move to the government. The state is considered to be the ultimate heir of every deceased. There are twelve Sharers namely Husband, Wife, Daughter, Daughter of a son, Father, Paternal Grandfather, Mother, Grandmother on the male line, Full sister, Consanguine sister, Uterine sister, and Uterine brother. The share taken by each sharer will vary under different conditions. Such as, a wife takes 1/4th of share in a case where she do not have any child, and a one-eighth share otherwise. A husband takes a half share from the estate of his deceased wife, in case where they do not have any lineal descendants, and a one-fourth share otherwise. Single daughter takes a half share. Where there is more than one daughter, all daughters jointly take two-thirds. If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuary instead, with the residue being so distributed as to ensure that each son gets double share in comparison to daughters. In Islamic law, the heirs are the individuals with legitimate blood relationship to the deceased and are entitled to inheritance. Thus, adopted children and illegitimate children have no shares in inheritance. In general, a full brother prefers over or will exclude a half-blood brother who shares a common father i.e. the consanguine brother. In cases where a deceased Muslim man leaves a pregnant woman, the share of an unborn child will be reserved. For purposes of inheritance, a woman observing the iddat period after divorce is considered a wife of the deceased. There are some rules of exclusion and inclusion of different individuals or the heirs. The practical situations which may cause disqualification for the purpose of inheritance are differences of religion and homicide. There are four duties that are to be performed after the death of a Muslim. One needs to pay funeral and burial expenses, debts of the deceased, determine the value / will of the deceased (which can only be a maximum of one third of the property).Distribute the remainder of estate and property to the heirs of the deceased according to Shariat Law. Therefore, it is essential to determine the relatives of the deceased who are entitled to inherit.
Monnishaa Mahajan, Principal Attorney at Legal Help NRI. Monnishaa has an experience of more than 15 years in assisting and advising NRI's in resolving their disputes in India.